Microsoft’s in-house counsel are tight-lipped regarding Bing’s position on trademark use in keyword ads. At the recent trademark symposium they hosted, the most they said was that the policy was “fluid”. But now Microsoft has announced that Bing is to adopt a Google-like trademark policy: advertisers on ‘Bingle’ will be able to purchase keywords relating to trademark terms. This is a huge shift in search: simultaneously a vindication of Google’s business model and a nod of admiration for the company that monetised other peoples’ trademarks.

Microsoft’s plans are detailed in the following text, sent to Eric Goldman, the Santa Clara University School of Law professor who studies technology and the law:

We are writing to alert you to some pending changes to the trademark policy within the Microsoft Advertising adCenter IP Guidelines. Starting March 3 2011, adCenter will no longer review trademark keyword complaints. However, adCenter will continue to investigate brand owner complaints related to trademark use in ad text.

We want to make it easier for you to manage your search advertising campaigns. By aligning the adCenter trademark policy with the current industry standard, we hope to help simplify your marketing efforts across the various online advertising programmes.

This is a fascinating, if not unsurprising, change. At Redmond’s recent trademark symposium, a number of delegates discussed Bing’s hitherto reluctance to allow bidding on trademarks, especially given Google’s collection of favourable judgments for this practice and the discovery that Google’s ads confused even its own in-house counsel. The consensus among non-Microsoft employees seemed to be that, since Microsoft was not a search company, it did not need to take the apparent risk in order to generate the profits seen at Google. But how exactly the business calculated risk versus potential profit with reference to Bing’s trademark policy was unclear. Now we know that, thanks to Google’s court success, that risk has diminished.

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